Heimbecher v. City and County of Denver, 12620.

• Decision Date: 07 March 1932
• Docket Number: 12620.
• Citation: 90 Colo. 346,9 P.2d 280
• Parties: HEIMBECHER v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

9 P.2d 280

90 Colo. 346

HEIMBECHER v. CITY AND COUNTY OF DENVER.

No. 12620.

Supreme Court of Colorado

March 7, 1932

In Department.

Error to District Court, City and County of Denver; E. V. Holland Judge.

Condemnation proceeding by City and County of Denver, a municipal corporation, against Charles F. Heimbecher. To review the judgment, defendant brings error.

Affirmed.

Con K O'Byrne and Wm. H. Scofield, both of Denver, for plaintiff in error.

Thomas H. Gibson, Frank L. Hays, and James D Parriott, all of Denver, for defendant in error.

CAMPBELL J.

The city and county of Denver, a municipal corporation, formulated a plan to straighten the channel of the South Platte river, within the city limits, and to erect an embankment or dike along its banks to prevent flooding of the adjacent premises. Being unable to acquire by purchase all of the adjoining lands necessary therefor, the city proceeded, under the eminent domain state statute, to acquire, among other tracts, several parcels of lands or lots owned by the defendant Heimbecher which were necessary to the completion of its proposed plan.

This is the second time that the Heimbecher case has been Before us. On the first hearing the judgment of the district court, which approved the award of a jury to him, in the sum of $5,000 for the four parcels of land, including the soil to the center of the stream, was reversed for the reasons stated in our opinion which is reported under the title City and County of Denver v. Tondall, 86 Colo. 372, 282 P. 191. Upon retrial in the district court an award to Heimbecher by a jury in the sum of $7,000 as the value of the same four parcels, not including the bed of the stream, was approved by the trial court over his objection. He is here with this writ of error asking that such award be set aside as inadequate, and that another and third trial in the district court be ordered.

If the district court at the first trial assumed or held that Heimbecher's ownership of lots abutting on Platte river extended to the center of the stream, its judgment was not reversed because of that holding. The reversal, as shown by our opinion, was expressly limited to the error of the trial court in approving a verdict manifestly excessive. We expressly refrained from expressing an opinion upon any other question of law or fact decided by the district court. Upon the second trial, final judgment of which is now under review, the same court, a different judge presiding, instructed the jury that Heimbecher did not own any lands or soil in the bed of the river abutting his lands and, therefore, suffered no damage with respect thereto by the proposed improvement, and refused to permit the jury to assess any damages based upon the asserted ownership. Because of such alleged error in restricting to the lot line Heimbecher's ownership of lots abutting the stream, instead of extending it to the thread of the stream, defendant's counsel say in their brief forms the basis for the prosecution of this pending writ of error. Indeed, we think counsel for defendant might have added, what is the logical conclusion of what he does say, that if the trial court was right in such holding, all other questions of law or fact attempted to be raised by him at this time may be disregarded, for their resolution either way would not control or affect our decision upon this review.

Notwithstanding this statement of counsel, he has not restricted his argument to the controlling question in the case, but complains of rulings of the trial court upon minor matters which in our view require no consideration. From the foregoing it is apparent that defendant's chief, indeed his only, ground for relief, if he has any, is that the trial court held that ownership of his lots bordering on Platte river does not extend to the thread of the stream. The parties themselves are in accord that at the common law the general presumption is that a conveyance of lands bounding on a street or highway or a nonnavigable stream, like Platte river, carries the fee to the center thereof. It is also the general common-law rule that the owner may convey the adjoining land without the soil thereunder. City of Denver v. Pearce, 13 Colo. 383, 22 P. 774, 6 L.R.A. 541; Hanlon v Hobson, 24 Colo. 284, 51 P. 433, 42 L.R.A. 502. Both of these cases recognize the existence in Colorado of the general commonlaw rule and the noted exception thereto. The Pearce Case is an example of the exception to, while the Hobson Case is a specimen of, such general rule. The source of Heimbecher's title to these lots is a quitclaim tax deed. They are a part of and included in Fletcher's West Side addition which, at the time of filing the plat thereof, was within the town of South Denver. Some years later by annexation proceedings they were annexed to and became a part of the city and county of Denver. It should here be stated that these lots in question have but little intrinsic value as such. Heimbecher, their owner, is engaged in the sand and gravel business and these lots are of value to him largely, if not altogether, for the...